Winter 2020

Why I Left Immigration Law

Why I Left Immigration Law

The U.S. immigration system demands penance from immigrants for the privilege of staying in the country and reinforces tired stereotypes about the global South. After four years, I could no longer be part of it.

Jawziya F. Zaman &squarf; July 12, 2017
Since Trump's inauguration, immigrant rights activists and concerned citizens have been united in countrywide protests. But we should push our critique further. (Kenneth Lu / Flickr)

There’s a young woman sitting across the desk from me. My work is to map her life onto 8.5 by 11 inches—the dimensions of my intake sheet. She doesn’t yet know that her experiences are a haphazard accumulation of evidence, the building blocks of a case to be decided by a robed figure who will dispense justice and forget her face before the ink dries. I ask the usual questions about where she’s from, when she came to the United States, and why she is afraid of returning to her home country. I evaluate her answers for what I can use for her asylum application. She tells me three things about herself. She’s from a Muslim country, her family is religious, and she’s a lesbian. I immediately relax into my chair. “You just won your case,” I want to say but don’t.

Instead, I give her a primer on asylum law and walk her through procedures, deadlines, and the required forms of evidence. Although we’ll prepare the strongest case possible, I say, there are no guarantees of success. But I’m silently whittling her story to the shape I know will lead to the desired outcome. I’ll frame her experiences within readily available descriptions of a regressive religion and a society steeped in patriarchy. I’ll paint a picture of yet another oppressed Muslim woman whom the United States must save from her backward culture. I’ll draw on media articles and the State Department’s annual country reports on human rights practices to support my argument that the experiences of sexual minorities in her country can be easily reduced to one truth: suffering, persecution, or death. I’ll speak to a few academics who study the country, and provide the court with an expert letter from whichever one corroborates my conclusions without complicating the issue. In my head, we’ve already won the case. Over a year later in court, we do.

I practiced immigration law in San Francisco for four years, spent three of those years wrestling my own discontent, and finally quit two months before Donald Trump won the election. It wasn’t immediately obvious why my chosen profession had me dreading each day. I loved my colleagues and found the larger community of immigration attorneys warm, supportive, and deeply committed to helping their clients. Many judges in my jurisdiction made decisions based on fairness and compassion. When I won cases, particularly for undocumented clients, I saw tangible benefits—a parent wasn’t deported, or a family stayed together, or an asylum seeker no longer had to fear returning to her home country.

My frustration with the job, I learned, had to do with how I felt implicated in the flawed premises of immigration law, including its reductionist narratives about other countries and its dehumanization of foreigners. In virtually every case involving defense against deportation, the law insisted that I reinforce tired stereotypes about the global South and force clients to undergo a ritual flagellation before they could be granted the privilege of remaining in the country.

Eight days after Donald Trump assumed the presidency, two events occurred that highlighted how U.S. immigration law distorts a lawyer’s relationship with the rest of the world. As airports across the country closed the gates to Muslims and refugees from seven countries, immigration activists took to the streets, crowds chanted “let them in,” immigration attorneys provided free legal services, and people formed protective circles around Muslim congregations who offered prayers.

Less than twenty-four hours later in a small Yemeni village, U.S. Navy SEAL Team 6 killed at least twenty civilians in a raid ostensibly conducted to collect vital intelligence that would protect the United States from future terrorist attacks. Afterwards, official justifications grew muddled and contradictory; the military released what it claimed was an intelligence video seized during the raid—and then hastily removed it after discovering it had been posted online since 2007. At least nine Yemeni children, one of whom one was a newborn baby and another an eight-year-old girl, were killed in the military operation. But there were no mass protests for the village destroyed, no candlelit vigils for the dead.

What explains this unwillingness to acknowledge the Muslims the United States murders in Yemen (or Somalia, Sudan, Syria, Iraq, Libya, Afghanistan, and Pakistan) while crying for the Muslims we turn away at U.S. airports? Is it only by virtue of seeking entry into this country that foreigners become human beings worthy of our regard?

Before many undocumented immigrants can legalize their status and remain in the country, the government must grant what’s called a waiver of inadmissibility. “Inadmissibility” is a term of art for certain actions—such as entering the country without valid documentation or lying to the government—that prevent immigrants from gaining legal status and being allowed to remain. An immigrant’s waiver application must prove that her U.S.-citizen (or, in some cases, green card–holding) parents or spouse would face extreme hardship in the United States if she were deported. She must also show that her relatives cannot be expected to relocate to a foreign country if such deportation were inevitable. In this way, one central feature of every successful waiver application I filed was proving that my client’s country of birth was unfit to house her American relative.

There’s an easy formula immigration attorneys follow to make that case. We inventory our clients’ lives, excavate fragments of their past—collect this bit of ugliness, that bit of violence—and cobble together a selective biography that contrasts the grinding reality of what they left behind to the infinite possibility that America represents. The stories we tell the government always have the same plot and cast of characters. There are hardworking parents or absent ones, and too many children, set against the grim backdrop of poverty, crime, and unemployment. There might be conflict with a neighbor, a partner, or a gang. The infrastructure crumbles while a corrupt, often brutal, government looks on. After we complete this banal picture of Third World dysfunction, we disrupt it by placing an American in the middle of it. Suddenly, it all seems so much worse. Subjecting one of our own to the daily reality of citizens of the global South is the legal definition of extreme hardship.

Our narratives about the rest of the world consist of interchangeable anecdotes of suffering, scarcity, and repression. There’s no room for complexity here, and nuance only muddles the case. We tell ourselves that what we describe on paper is just the facts absent interpretation—the client narrates and we transcribe. But the law demands just one story from our clients about their lives and where they come from, and it’s not a story of resilience and success. This narrative obstructs the possibility that an immigrant’s relationship with the country of her birth might be complicated in ways we don’t understand—that she could be forced from her home and still have no other, or that she could loathe it and long for it at the same time.

But black-and-white keeps immigrant families together, not shades of gray. Over time, the names of our clients’ countries become sounds that call forth a series of images unanchored from political context and history—images of gang violence, hungry children, and oppressed women. We think we know the most important thing there is to know about these places: people leave. We don’t understand what it means to stay, and the millions who do are unintelligible; we have no relationship with those people and their choices. And we’ll never have to give them more than a cursory glance because the sum of their lives has been distilled into helpful statistics about poverty and violence that increase the likelihood of winning our cases.

It’s the stories we tell about other countries that cause immigration attorneys rage and sympathy for would-be immigrants affected by the Trump administration’s draconian policies. We know better than anyone the bleak places they’ve left behind. “Let them in!”we cry with a kind of self-righteous indignation, and when the other side asks, “But why?” we give each other knowing looks and roll our eyes. We name the government racist, xenophobic, and Islamophobic in response without acknowledging that this bitter tug of war reveals something peculiar about immigration law. The bedrock upon which the defense and the prosecution build their arguments in virtually every case is the same: America is the superior option—it’s better than wherever you came from.

Whether it’s the government attorney trying to deport immigrants or the attorney fighting to keep them in the country, both share a steadfast belief in the future promise of America, its uncommon hospitality. The only difference is, one side is motivated by bald-faced nativism while the other is motivated by a desire to save black and brown people from their tyrannical governments and their oppressive cultures. In the meanwhile, neither pays much attention to the hypocrisy of a country that congratulates itself on being inclusive and welcoming of immigrants while ignoring its part in creating conditions that make many of their native countries unlivable. We turn our watery gazes to the airport and the children we murdered in Yemen fade from the news because their lives and deaths are pointless abstractions.

But if they’d applied for U.S. visas and been rejected, we’d be outraged.

After I quit my job, I went to London to volunteer at Reprieve, an organization that works to hold the United States and other governments accountable for counterterrorism policies that result in indefinite detention, torture, and the death of innocent people. Since leaving the country, I’ve watched the worsening plight of immigrants in Trump’s America with dismay. There are reports of increased immigration enforcement raids all over the country, and last month, the House of Representatives passed an act denying many federal grants and funding to sanctuary cities and states that shelter immigrant communities and limit cooperation with federal immigration law enforcement. Most recently, a Supreme Court decision allowed a section of President Trump’s revised travel ban to remain in place temporarily, until a final decision on the merits of the case is reached later this year. For now, travelers from six Muslim-majority countries will be banned from entering the country unless they can prove “bona fide” ties with U.S.-based family members or entities.

This shifting legal and policy landscape has unleashed a heartening wave of resistance. Immigrant rights activists and concerned citizens have been united in countrywide protests. Organizations that work to further immigrant rights have been inundated with donations. Attorneys have taken the battle to the courts. Civil rights groups are holding know your rights trainings and offering free legal consultations to immigrant communities. Such individual and group defiance in the face of difficult odds represents the best of the United States since President Trump took office. But we should push our critique further and reflect on how immigration law demands penance from immigrants—something that dates back long before the current White House occupant began signing his executive orders.

Unlike other kinds of law where an attorney’s job might be to argue that her client did nothing wrong, a lot of immigration law begins with an admission of guilt. We concede that our clients entered the country illegally, or stayed longer than they were supposed to, or lied to the government about their marital status, or whatever else. Different circumstances call for different forms of legal relief, but a central feature in many of our cases is that our client did wrong and now he’s terribly sorry. Confession and penance are akin to sacraments in immigration law, and the process of asking the government to pardon your client’s digressions is a disconcerting combination of formulaic and theatrical.

There are forms, exhibit lists, and piles of evidence to prove our client is a good person even though he broke the law. Being good is a prosaic business that translates to paying taxes, having a steady paycheck, and going to church. The client narrates his good deeds in a written statement that should explain in some detail why he did wrong, how he’s learnt his lesson, and why he shouldn’t be deported. The statement forms the basis of the client’s oral testimony in his court hearing, and this is where the drama happens. In the many hours I spent preparing clients for their public confession—in legal terms, testifying in court—I emphasized the importance of appearing sorry in addition to being sorry. I warned them that if either the judge or the government for one second sensed evasiveness or defensiveness from them, the case was lost. Some clients understood the performance that was expected of them better than others.

In one such case, I struggled to explain the significance of demeanor to a dignified and introverted Korean client in his sixties. He sat rigid during each of our meetings, spoke in short, halting sentences, and refused eye contact. I felt that this process must be as distasteful to him as it was to me and I was embarrassed at subjecting him to invasive inquiries about his personal life. When I pressed him on that most important question—are you sorry for lying about your marriage—he tightened his jaw, looked away, and answered in monosyllables. I couldn’t get him to do better.

In court, we faced an unusually punitive government attorney who saw my client’s discomfort and exploited it to her fullest. She fired variations of the same question and pounced angrily if his answers seemed uncertain. It was going badly. I could see from his increasing nervousness that he was concerned about the outcome of his case and I was, too, until five minutes before the hearing concluded. I asked him in closing if he had anything he’d like to say to the judge before she made her final decision. He was silent for a long moment and then dignity gave way to necessity. The old man bowed his head and began to weep. He said he was sorry and ashamed, and begged that he be allowed to stay in the United States. Through tears, he explained that he had no other home, and implored the judge not to separate him from his family. It was exactly what I’d hoped would happen. I felt sick. We won the case.

Since the law requires an immigrant’s identity to be reduced to an abject powerlessness, attorneys teach their clients the obligatory theatrics that help win their cases. I give up. I’m sorry. I did something bad but I’m good. Forgive me. Please let me stay. And when we’re successful, we congratulate ourselves on a job well done and don’t ask what it means to be complicit in a system that rewards misery and defeat while punishing resilience and strength.

Before I left the United States, I spent much time wondering why our legal system is so intent on shaming immigrants before granting them any rights. For undocumented immigrants, especially, the unspoken assumption seems to be that they demand what isn’t owed.

Nowhere is this suspicion more evident than in asylum hearings where the law requires maniacal levels of consistency from those least likely to display it. Any immigration attorney will tell you that inconsistency is the guillotine that hangs over every asylum case. If the client’s written statement says she wore a green sweater on Tuesday, she can’t say it was blue when she testifies in court. It sounds absurd—and it is—but we lose sleep over these details because they have the power to change the outcome of our cases. If the client is deemed inconsistent by the government, then she’s not credible. And if she’s not credible, then she obviously made the whole thing up, including the rape or the murder or the torture that caused her to flee from her home country.

I recall my first asylum hearing on a domestic violence claim where the male judge tried to determine whether my client was credible in response to a government attorney’s skepticism about where, how, and how frequently her partner raped her. As she described a short period of time during which she was raped repeatedly, the judge stopped her to ask for clarification about what the instrument of penetration was each time. My client seemed puzzled and I closed my eyes and hoped he wasn’t initiating the heinous line of questioning I thought he might be. No such luck. To dispel the client’s confusion, he added helpfully, “What I mean is, did he use his fingers that time, or his penis?” We continued in this fashion for a few minutes until both he and the government attorney were satisfied that she had described the details consistently and was therefore credible. Tuesday’s rape was with his fingers. Wednesday’s rape was with his penis. Congratulations, your asylum application has been granted.

The nature of trauma defies consistent retellings of it but the law demands that immigrants resist the natural workings of human psychology and memory to win their cases. I struggled with this tension each time I prepared my clients to testify in court. I asked them a hundred personal questions and paid attention to what they weren’t saying. I pressed and nudged at the outskirts of their silence until it yielded the information I needed. After the facts would emerge over a period of many hours and disjointed flashbacks, I taught them to impose order and chronology onto their trauma. In doing so, I forced them to relive and recount that which they wanted most to forget.

During an intensive month-long preparation period for another domestic violence–based asylum case, I watched the effect of this process on my client. She’d come to each meeting increasingly bleary-eyed and exhausted. The more we practiced, the less she seemed to remember. During one meeting, she’d insist an event took place ten years ago and during the next, she was certain it happened last year. She’d trail off in the middle of sentences, her face blank. At her job cleaning offices, she’d stare out of the window on the tenth floor and think about jumping. “I don’t sleep anymore,” she told me each time we met. I could do little other than offer her tea or sit with her in silence or hug her. I’d tell her she didn’t have the luxury of giving up, and if nothing else, she had to stop thinking about jumping out of windows for her four little children who needed their mother alive and well. Then, I’d steer her back toward describing the unspeakable acts of violence that produced each of those children, the same violence that made sleep impossible every night.

A few weeks after we won that case, my client came to the office with her children obediently in tow. They sprawled on the sofa in the waiting room, utterly disinterested in the stranger who’d monopolized too much of their mother’s time in the past several months. She looked more rested than I’d ever seen her. “Are you finally sleeping?” I demanded. She laughed and told me that she was, and that was one day I didn’t wonder how to stop being an immigration attorney.

It’s results like these that made my eventual decision to leave the practice so difficult. Is the dehumanizing process worth the successful outcome? Most, if not all, immigrants and attorneys would say yes, and it’s difficult to disagree. My own discomfort with the constraints of the legal framework within which I acted necessarily gave way to the real world consequences of each case. Immigrants do come to the United States to better their lives and to give their children opportunities they would not have had in their native countries. Sexual minorities from conservative countries do find safety and self-expression in the United States. But this is only a small piece of a multifaceted truth for which the law does not—and perhaps cannot—account. And as lawyers, we are often locked in a fast-paced process whose daily urgency inhibits our thinking critically about the complexity of lived realities, the global structures that lead so many people to come to this country in the first place, and the insidiousness of a legal system that looks upon immigrants with suspicion or pity.

Nevertheless, it’s vital that all of us—immigrant rights activists and immigration attorneys, both former and current—debate the many flaws in our immigration laws and remain vigilant, not just against President Trump’s immigration policies, but against reducing immigrants’ home countries to crude stereotypes, and their lives to the sum of their past hardships and the future promise of America.

Jawziya F. Zaman practiced immigration law in the United States for four years. She recently moved to Pakistan, where she is working on issues of criminal justice reform with Karachi’s Legal Aid Office.